West Virginia Sues U.S. EPA Over Mountaintop Mining Permits

West Virginia Sues U.S. EPA Over Mountaintop Mining Permits

CHARLESTON, West Virginia, October 8, 2010 (ENS) – The state of West Virginia has field a lawsuit against the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers for blocking the permitting of surface coal mining permits.

The civil lawsuit “seeks relief from a series of actions taken by EPA and the Corps that unlawfully seek out and target surface coal mining in West Virginia and five other Appalachian states” – Kentucky, Ohio, Pennsylvania, Tennessee, and Virginia.

West Virginia Governor Joe Manchin, a Democrat, announced the lawsuit at a news conference Wednesday attended by representatives from the West Virginia Coal Association, the United Mine Workers of America and families from the mining community.

“I’ve asked our stakeholders to come together today because over the past year and a half, we have been fighting President Obama’s Administration’s attempts to destroy our coal industry and way of life in West Virginia,” the governor said.

Manchin said that in 2009, “through a series of questionable and unlawful actions,” the U.S. EPA has implemented policies and procedures that have delayed the permitting process and halted the issuance of new mine permits.

In surface coal mining, also called mountaintop removal mining, entire coal seams are extracted by blasting away the soil, trees, plants and wildlife above the coal. After the coal is extracted, neighboring valleys are filled with unwanted rock and soil, burying streams.

West Virginia’s lawsuit particularly objects to two documents – the Enhanced Surface Coal Mining Pending Permit Coordination Procedures issued by EPA and the Corps on June 11, 2009, and the Detailed Guidance Memorandum issued by EPA on April 1, 2010.

Those two documents became effective immediately upon their issuance and have been applied by EPA and the Corps to block pending permit applications for West Virginia surface mining operations.

In its lawsuit, West Virginia claims that by these actions, “EPA and the Corps have demonstrated a brazen disrespect for the notice-and-comment rulemaking that forms the backbone of proper regulatory action by giving the States and interested parties an opportunity to comment upon proposed rules before implementation.”

Governor Manchin said, “Without formal rulemaking, the U.S. EPA, the U.S. Army Corps of Engineers and the U.S. Department of Interior adopted a policy in 2009 that delayed the issuance of 23 pending coal permits in West Virginia. Of those permits, only two have been approved to go forward. The others have been either withdrawn or are still pending.”

The lawsuit claims that by withholding permits under the Clean Water Act, the U.S. EPA has usurped the authority of the state and the West Virginia Department of Environmental Protection to oversee and regulate water quality.

“EPA’s unjustified and unlawful actions have obstructed and delayed permitting processes under the Clean Water Act to such degree that, absent judicial intervention, they could sound the death knell for surface coal mining in West Virginia and five other Appalachian states,” the state says in its legal complaint.

Governor Manchin said his administration has worked as hard as it could to resolve these issues with EPA without resorting to litigation.

But now, he warned, “The EPA’s illegal actions absolutely will harm West Virginia’s economy and cost us jobs. We are asking the Court to reverse EPA’s actions before West Virginia’s economy and our mining community, face further hardship and uncertainty and weaken the strength of this country.”

The West Virginia lawsuit calls into doubt the science on which the EPA and the Corps stand, saying the agencies “have acted unilaterally in reliance on questionable scientific literature, much of which has not withstood proper review from the scientific community.”

But on September 28, the EPA’s independent Science Advisory Board released their review of EPA’s research into the water quality impacts of valley fills associated with mountaintop mining that supports EPA’s scientific research and agrees with EPA’s conclusion that valley fills are associated with increased levels of conductivity – a measure of water pollution for mining practices – in downstream waters, and that these increased levels of conductivity threaten stream life in surface waters.

“This independent review affirms that EPA is relying on sound analysis and letting science and only science guide our actions to protect human health and the environment,” said EPA’s Assistant Administrator for Water Pete Silva. “We will continue to follow the science and solicit input from all stakeholders as we safeguard water quality and protect the American people.”

Environmentalists support the federal agencies’ efforts to stop mountaintop removal mining operations that they say have already buried more than 1,200 miles of streams and destroyed more than 387,000 acres of forests and mountains in West Virginia. Across Appalachia, more than 2,000 miles of streams have been buried.

For years, environmental groups have filed lawsuits against mountaintop removal, which they have both won and lost, made films and videos, established websites, lobbied and demonstrated against the practice.

This year, particularly, mountaintop removal mining opponents have been making their voices heard. Most recently, on September 27, about 2,000 people marched in Washington, DC and more than 100 people were arrested during Appalachia Rising, a national protest to end mountaintop removal mining.

Arrests included Appalachian residents; retired coal miners; NASA climate scientist, James Hansen; and faith leaders. After a march from Freedom Plaza and a rally at Lafayette Park, more than 100 staged a sit-in in front of the White House to demand that President Barack Obama end mountaintop mining.

“I have talked, begged, debated, written letters to officials, published op-ed pieces in newspapers and lobbied on the state and federal level to end mountaintop removal,” said Mickey McCoy, former mayor and lifelong resident of Inez, Kentucky, who was arrested in the demonstration. “Being arrested? That’s such a small price to pay for being heard. My home and people are paying the real price for mountaintop removal. They are dying.”

Click here to read West Virginia’s lawsuit against the federal agencies.

Click here to view the EPA’s position on its Guidance re: mountaintop mining and scientific reports.